American University Criminal Law Brief

Volume 4 Issue 2 Article 4

2009

Child Rapists Live to See Another Day

Shirley Huang

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Recommended Citation Huang, Shirley. "Child Rapists Live to See Another Day." American University Criminal Law Brief 4, no. 2 (2009): 60-71.

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Shirley huang, esq. * 1

Introduction Pre- Coker v. Georgia

The human capacity for good and compassion eighteen states, the District of Columbia, and makes the death penalty tragic; the human capacity for the federal government allowed the use of the death evil and depraved behavior also makes the death penalty penalty for the rape of an adult woman in 1925. 11 Al - necessary. 2 most fifty years later, that number had barely de - Rape is “one of the most egregiously brutal acts creased. 12 In Furman v. Georgia ,13 the Court held that one human being can inflict upon another,” 3 and has the death penalty as imposed in the cases before the been described as a “fate worse than death.” 4 Child rape Court constituted cruel and unusual punishment. As a is perhaps the worst crime one can commit, arguably result of the decision, states with capital rape statutes second only to murder. 5 It was not until the mid-1980s were forced to reconsider and revise their statutes so as that the media brought child sexual abuse to the nation’s not to be arbitrary and capricious. 14 Although states attention as a serious issue. 6 began to reinstate the death penalty after Gregg v. Geor - In 1976, the Supreme Court decided that sen - gia ,15 only Georgia, north Carolina, and Louisiana tencing a defendant to death for the crime of rape vio - maintained rape as a capital crime. 16 lates the eighth Amendment because it constitutes punishment that is grossly disproportionate to the crime Coker v. Georgia committed. 7 For more than thirty years, the constitutionality of classi - Child rape is perhaps the In 1974 ehrlich Coker was fying child rape as a capital crime worst crime one can com - sentenced to death after being con - has been questioned. 8 The Court re - mit, arguably second only victed of the rape of a sixteen-year- cently ended the ambiguity in 5 old woman. Section 26-2001 of the Kennedy v. Louisiana by determin - to murder. It was not until Georgia Criminal Code provided ing that the death penalty is an inap - the mid-1980s that the that “(a) person convicted of rape propriate sanction for child rapists, media brought child sexual shall be punished by death or by im - where the victim is left alive. 9 prisonment for life, or by imprison - This article explores the con - abuse to the nation’s atten - ment for not less than one nor more 6 stitutionality of the death penalty for tion as a serious issue. than 20 years.” 17 Defendant Coker the crime of child rape, focusing argued that the state statute violated specifically on Louisiana’s capital child rape statute. 10 the cruel and unusual punishment clause of the eighth Part II briefly outlines the Supreme Court’s child rape Amendment, and the Court agreed. 18 Following the decisions. Part III examines the practical and theoretical Coker decision, states followed suit and revised their problems associated with using capital punishment in rape and death penalty statutes to reflect the holding. 19 the context of child rape. Part IV suggests ways to Between 1989 and 1995 no jurisdiction in the amend child rape statutes to provide for the death united States authorized the death penalty as punish - penalty in a way that does not violate the eighth Amend - ment for the crime of rape. 20 however, this changed in ment. 1996 when Louisiana passed its capital rape statute and sentenced Anthony Wilson and Patrick Bethley to death Prepping the United States Supreme Court for Ju - for raping a child under the age of twelve. 21 The dicial Review of Capital Punishment Louisiana capital rape statute made the death penalty a potential punishment for aggravated rape of a child for Child Rapists under the age of thirteen. 22 The Supreme Court Holds that Capital Pun - ishment in Cases Where the Victim is an Adult is Capital Child Rape in Louisiana Courts Unconstitutional 60 Criminal Law Brief State v. Wilson 23 was the first case after Coker to united States. challenge a child rape statute. In 1995, Anthony Wilson was indicted by a grand jury for aggravated rape of a Is The Death Penalty Proportionate to The Crime five year old girl. 24 his case was consolidated with that of Child Rape? of Patrick Dewayne Bethley, who was charged with rap - ing three girls under the age of ten, including his daugh - The Coker Court seemed to approach the death ter. 25 Defense counsel moved to quash the indictments penalty with the theory of “an eye for an eye,” finding arguing that imposing the death penalty for the crime of that the death penalty is appropriate for murder, but rape would constitute cruel and unusual punishment not rape. 38 Past decisions where the death penalty has under the eighth Amendment to the Constitution. 26 The been sought in non-homicide cases have subsequently trial courts in Wilson and Bethley’s cases agreed with been determined to be unconstitutional. 39 the defense on the grounds that the punishment was ex - cessive and the class of eligible defendants had not been Is the United States Evolving Towards Putting Child sufficiently limited. 27 The State appealed both cases to Rapists To Death? the Louisiana Supreme Court which held that “in the case of the rape of a child under the age of twelve, the The concept of “[cruel and unusual] must draw death penalty is not an excessive punishment nor is it its meaning from evolving standards of decency that susceptible of being applied arbitrarily and capri - mark the progress of a maturing society.” 40 Coker ex - ciously.” 28 The united States Supreme Court denied plored the issue of whether the “evolving standards of certiorari based on lack of jurisdiction because Bethley decency” doctrine leads states which allow capital pun - had not been convicted or sentenced to death when the ishment to extend it to child rape cases that do not in - challenges were made. 29 volve homicide. The Court stressed that the Louisiana Recently the Supreme Court reconsidered the statute should be judged by “the evolving standards of issue of capital punishment for child rapists in its deci - decency that mark the progress of a maturing society,” sion in Kennedy. In 1998, Patrick Kennedy was charged and not the standards that existed when the eighth with aggravated rape of a victim under the age of Amendment was adopted. 41 The Court concluded that twelve: his eight-year-old stepdaughter. 30 The State of “there is a national consensus against capital punishment Louisiana sought the death penalty and the jury subse - for the crime of child rape.” 42 In reaching that conclu - quently found the defendant guilty. 31 In the penalty sen - sion, the Supreme Court looked to objective factors such tencing phase, the jury unanimously recommended a as “public attitudes concerning a particular sentence his - death sentence. 32 tory and precedent, legislative attitudes, and the re - sponse of juries reflected in their sentencing decisions.” 43 Was the Decision in Kennedy the Right One? Legislative enactments Could it merely have been a coincidence that the more liberal justices made up the majority of the Coker Since 1995, several states have attempted to pass Court that found the Louisiana statute unconstitu - legislation providing the death penalty as a potential tional? 33 Coker noted the importance of the Justices sentence in child rape cases; 44 few have been success - looking beyond their own opinions to more objective ful. 45 In calculating the number of states with capital factors. 34 Louisiana Governor Bobby Jindal proclaimed rape statutes, the Court in Kennedy ignored states with that the five liberal justices who voted the statute un - pending capital child rape legislation. 46 constitutional did “not share the same ‘standards of de - Recent Supreme Court death penalty decisions cency’ as the people of Louisiana.” 35 naturally, Justices’ have looked to foreign countries in determining evolv - personal opinions will affect their judicial decisions. 36 ing standards of decency. 47 Rape is punishable by death In Coker, dicta of the majority suggest a trend toward in China, egypt, Iran, Iraq, Kuwait, Morocco, Pakistan, abolishing the death penalty. 37 The Court’s decision in Saudi Arabia, Somalia, South Korea, Syria, Taiwan, Kennedy both embraces Coker’s instruction to look to - uganda, united Arab emirates, and the former uSSR. 48 ward objective factors and appears to continue the trend China, Iran, Jordan, Mongolia, the Philippines, uganda, toward the outright abolition of the death penalty in the Summer 2009 61 and uzbekistan are the only foreign countries that utilize anyone for a crime that did not result in the death of the the death penalty to punish child rapists. 49 The more de - victim. 61 Kennedy notes that since 1964, only two indi - veloped countries of the world are largely absent from viduals have been sentenced to death for child rape. 62 that list. Thus, although the Kennedy Court omitted any In light of the Supreme Court holdings discussed above, discussion of international opinion, 50 the result of the some prosecutors have chosen not to seek the death case would likely have been the same; the death penalty penalty in child rape cases. 63 For instance, in the case is excessive for the crime of child rape in developed of Rodolfo Lopez Velazquez, a convicted child rapist, countries. the prosecutor did not seek the death penalty because he The Court thought it had rid its hands of the was under the impression that Coker controlled and that issue of capital child rape in June 2008 with the Kennedy the death penalty was unavailable as a sanction. 64 how - decision, until an article in the new York Times 51 noted ever, when Coker struck down the death penalty as a that on the weekend after the ruling, Marine Corps Re - punishment for rape, the main rationale behind the rul - serve Colonel Dwight Sullivan wrote in a blog about the ing was that the survival of the victim does not justify Court’s failure to discuss the military penalty for rape killing the rapist. 65 Similarly, the Court stated in in the uniform Code of Military Justice. 52 Once notified Kennedy that “the death penalty can be disproportionate of the omission, Louisiana petitioned the Court for a re - to the crime itself where the crime did not result, or was hearing to consider the military capital child rape statute not intended to result, in the death of the victim.” 66 enacted by Congress. 53 On October 1, 2008, the Court That said, the Kennedy Court repeatedly noted the denied the state of Louisiana a rehearing on the matter. 54 following distinction: although Coker found that the Acting Solicitor General Gregory Garre argued death penalty for raping an adult woman is unconstitu - that the actions by Congress and the President were “the tional, it did not necessarily exclude the death penalty emerging ‘national consensus’ supporting - not opposing for child rape. 67 Indeed, in his dissent Justice Samuel - capital punishment in child rape cases.” 55 In his opin - Alito speculated as to why states do not pass laws mak - ion, Justice Kennedy seems to suggest that military law ing child rape a capital crime, 68 whereas the majority has no place in the Court’s discussion of sentencing found it unnecessary to do so. 69 The Court found that civilians to death as the military world and civilian in recent years some states have moved toward using world are two discrete spheres. 56 however, in his dis - such a punishment; however, the change has been in - sent, Justice Antonin Scalia questions how a soldier significant. 70 The Court compared the forty-five juris - could be sentenced to death for raping a child, yet a dictions that prohibit the death penalty for child rape to civilian could not. 57 “the 30 States in Atkins and Roper and the 42 States in In addition to questioning the distinction be - Enmund that prohibited the death penalty under the cir - tween military and civilian treatment of the death cumstances those cases considered.” 71 In citing Atkins , penalty for child rape, Scalia also asserts that states that the Court recognizes that “[c]onsistent change [in sup - categorically prohibit the death penalty should not be port of the death penalty for rape] might counterbalance counted when determining whether there is a national an otherwise weak demonstration of consensus,” 72 how - consensus in favor of imposing the death penalty for a ever, the Court found no such consistent change. 73 certain crime. 58 Fourteen states punish twenty-one dif - ferent crimes with the death penalty. 59 If the Court had Public Attitudes considered the non-homicide death penalty jurisdictions along with the child rape death penalty jurisdictions, Public attitudes toward imposition of the death Louisiana’s statute would have had a better chance of penalty are “an expression of society’s outrage at par - surviving constitutional muster, as simply an additional ticularly offensive conduct.” 74 Although states may be non-homicide death penalty law. On the other hand increasingly tough on those who rape children, 75 that even though those jurisdictions have such statutes they does not necessarily mean that the constituents of those have not been enforced, 60 and thus the result may have states approve of the death penalty for child rape. What been the same. society thinks is acceptable can also be judged by the response of juries. 76 however, the mere fact that a jury history and Precedent does not recommend a death sentence for a defendant does not mean that the jury believes that the crime the Since 1964, the united States has not executed defendant committed should not be punishable by 62 Criminal Law Brief death. 77 Instead, juries reserve the death penalty for his victim.” 90 Child rapists will therefore have to make those individuals they feel deserve it the most. 78 In the conscious effort to kill their victim. 91 By imposing doing so, jurors must evaluate the facts presented about the death penalty on a child rapist, the courts will essen - the defendant to determine “whether in this instance so - tially be punishing the rapist for making the decision not ciety is justified in killing him.” 79 to kill the child. 92 It sends a mixed message: “We will kill you if you rape a child” and “Kill the child if you Considering the Severity of the Death Penalty as a wish because you will receive the death penalty either Punishment for Child Rape way.” Therefore, without the death penalty, child rapists may be more inclined to kill the vic - A punishment is excessive The existence of the death tim. and therefore unconstitutional under penalty for child rape gives The national Association of the eighth Amendment if it “(1) Social Workers (nASW), having makes no measurable contribution rapists no incentive to leave filed an amicus curiae brief in sup - to acceptable goals of punishment their victims alive since port of Petitioner Patrick Kennedy, and hence is nothing more that the they could easily dispose of believes that Louisiana’s aggravated purposeless and needless imposition rape law undermines “the scourge of of pain and suffering; or (2) is the best, and often the sole, sexual violence against children and grossly out of proportion to the witness to the crime. 89 aiding its victims” 93 because “rather severity of the crime.” 80 A punish - than protecting children, this statute ment is also excessive when it “serves no penal purpose will increase the number of victimized children, encour - more effectively than a less severe punishment.” 81 If a age offenders to kill their victims, and interfere with vic - juror believes that a death sentence is too severe and the tims’ healing process.” 94 court is likely to impose such a sentence if the defendant The death penalty is not necessary to achieve the is found guilty, the juror may decide to vote to acquit in deterrent objective if a punishment less severe than order to avoid the defendant’s execution. 82 death will serve the same purpose. 95 For example, the possibility of receiving a sentence of life without parole Would the Death Penalty Deter Would- could be an effective deterrent. 96 Advocated for criminal Be Child Rapists? defendants fear that guilty defendants will plead to the charges simply to avoid the death penalty, while inno - A sentence may be cruel and unusual punish - cent defendants will go to trial, “[risking] death to de - ment, even if it “may measurably serve the legitimate fend themselves at trial.” 97 however with life without ends of punishment.” 83 however, a sentence is not in - parole as the alternative, this would not pose a serious valid simply because it does not serve the legitimate problem because although the public may wish to have ends of punishment. 84 The majority in Kennedy points the defendant executed, he is removed from society, and out that there is no significant proof that the death therefore he or she will no longer pose a threat to chil - penalty will deter individuals from committing child dren. rape. 85 There is no method to measure the number of individuals who would be deterred from committing Are Child Rapists Part of the “Most Deserving” child rape by the potential imposition of the death penalty. 86 The death penalty could serve deterrent pur - Capital punishment is reserved for “those of - poses or it could have no effect at all. 87 Some individu - fenders who commit ‘a narrow category of the most se - als are more prone to commit violent crimes than others, rious crimes’ and whose extreme culpability makes “given the same objective motives and equal prospects them ‘the most deserving of execution.” 98 The Supreme of punishment.” 88 Court in Coker v. Georgia , compared the impact of rape The existence of the death penalty for child rape on a victim with the impact of murder on a victim. In gives rapists no incentive to leave their victims alive doing so the Court concluded that the death penalty since they could easily dispose of the best, and often the would violate the Constitution in child rape cases. 99 The sole, witness to the crime. 89 The Louisiana Supreme Court emphasized that the life of a rape victim is not be - Court rejected Patrick Kennedy’s policy argument that yond repair. 100 nevertheless, some commentators argue upholding the statute will “encourage a rapist to murder otherwise. They note that while any existing physical Summer 2009 63 wounds may heal, the psychological effects of child - ident Barack Obama disagrees with the Court’s unwill - hood sexual abuse will last a lifetime. 101 Though rape ingness to make an exception based on the brutality of is not as final as murder, it is certainly an atrocious crime the attack. 119 Obama believes that “if a state makes a that outrages society. In Kennedy v. Louisiana , Justice decision that under narrow, limited, well-defined cir - Kennedy opines that questions of morality come into cumstances, the death penalty is at least potentially ap - play when considering banning the death penalty in plicable, that does not violate our Constitution.” 120 child rape cases. 102 namely, he states that “there are Justice Roberts believes that the law was narrow enough moral grounds to question a rule barring capital punish - in limiting the availability of the death penalty to those ment for a crime against an individual that did not result who rape victims under the age of twelve. 121 In a sepa - in death.” 103 In determining whether child rapists are rate opinion in Coker , Justice Powell suggests that the the “most deserving,” Justice Alito implies that the ma - death penalty would be proportionate for rape if the of - jority in Kennedy misplaced its focus by considering the fense was “committed with excessive brutality or [if]… eighth Amendment. 104 he states that the amendment is the victim sustained serious or lasting injury.” 122 meant to protect an accused’s rights, not to determine whether the punishment in question is “in the best inter - On the Horizon: The Aftermath of Kennedy ests of crime victims or the broader society.” 105 The Court’s ruling in Kennedy v. Louisiana im - Louisiana’s Capital Child Rape Statute As Written plied that no crime but murder should be punishable by Was Arbitrary and Capricious death. Although most would agree that the Coker and Kennedy decisions outlaw the use of the death penalty A capital statute must distinguish between those in child rape cases, others do not see the Kennedy deci - who deserve the death penalty and those who do not. 106 sion as an end to the crusade. 123 If proponents of the A bright-line rule for the death penalty would not be ra - death penalty for child rape do wish to continue the bat - tional in child rape cases. 107 In Coker , Justice Powell tle, they will have to help create statutes that will with - referenced Snider v. Peyton ,108 which discusses the “de - stand the scrutiny of the Supreme Court. Proponents gree of culpability of rapists.” 109 he highlights that in can do so by adding aggravating and mitigating circum - some cases, a rapist may be more vicious than a mur - stances and developing techniques to help reduce or derer, 110 emphasizing the severe and aggravated nature even eliminate innocent executions. of rape. 111 South Carolina recently passed a statute provid - A death penalty statute may “not be imposed ing that first-time child rapist is not eligible for the death under sentencing procedures that [create] a substantial penalty. 124 If the united States Supreme Court were to risk that it would be inflicted in an arbitrary and capri - review South Carolina’s statute prior to the Kennedy cious manner.” 112 There are certain standards that must case, the Court could very well have held that the statute be met. First, the sentencing judge must have adequate is constitutional because it is tailored to avoid the sub - aggravating and mitigating circumstances to use as stantial risk of imposing the death penalty arbitrarily and guidelines. 113 Second, the statute must sufficiently nar - capriciously. 125 row the class of defendants eligible for the death penalty. 114 These standards can be met in two ways: (1) Aggravating Circumstances State Legislatures the statute may narrow the definition of capital offenses Should Consider or, (2) the statute may broaden the definition of capital offenses and narrow jury findings of aggravating cir - The extremely broad Louisiana child rape statute cumstances at the penalty phase. 115 The death penalty had no provisions for requirements such as corrobora - may not be enforced infrequently such that the punish - tion or prior convictions of sexual assault. ment becomes arbitrary. 116 The two aggravating circumstances for the cap - Rapist is Carrying a Life Threatening Disease ital crime of child rape in Louisiana are the victim’s age and the fact that the offense was rape or attempted Faced with hIV-positive defendants and defen - rape. 117 The Court in Kennedy denied additional nar - dants with AIDS, would opponents of the death penalty rowing aggravators as a possible option to bring child for the crime of child rape view death as disproportion - rape statutes within death penalty jurisprudence. 118 Pres - ate to the crime if the child contracts the fatal disease 64 Criminal Law Brief from the rapist? Although the death may not be imme - actions and his or her victim nevertheless deserves jus - diate, the rapist will undoubtedly be the proximate cause tice. of the eventual death of the child. 126 Louisiana does not allow the death penalty under a felony-murder theory, 127 The Rapist is a Family Member but it would be interesting to see if it would accept the hIV-positive status of a defendant as an aggravating cir - When it comes to juvenile victims, over thirty- cumstance rising to the level of felony-murder. 128 four percent of individuals who rape children are family members of those children, and approximately fifty-nine Prior Record of Conviction of Sexual Offense percent are acquaintances. 135 Allowing the death penalty for child rape may make already reluctant children less Capital punishment could potentially deter oth - likely to report sexual assaults. 136 even if a child does ers from committing rapes after being convicted the first report the assault, the child may be easily persuaded to time. 129 Chief Justice Burger in his dissenting opinion recant the allegation by family members. 137 Opponents in Coker called attention to the fact that the defendant argue that imposing a rape sentence on a child rapist that was already serving a lengthy prison sentence. 130 Addi - is related to the victim by blood or marriage, would be tional prison time would have “no incremental punitive “undeniably counterproductive and will not serve any effect” because Coker has a life pattern such that he legitimate penal purpose for the State of Louisiana.” 138 “presents a particular danger to the safety, welfare, and chastity of women . . . [such that] the likelihood is there - Protecting the Innocent fore great that he will repeat his crime at the first oppor - tunity.” 131 Thus, in theory, capital punishment would One reason that juries generally may decide not have a deterrent force on the habitual offender because to impose the death penalty is a lack of irrefutable once convicted, he would have no other opportunity to guilt. 139 There is a need for heightened reliability in cap - commit rape. ital cases “to guard against the risk that an innocent de - fendant might be put to death.” 140 The testimony of Mitigating Circumstances Legislatures Should children may be unreliable because they are susceptible Consider to suggestion, 141 may confuse fantasy with reality, 142 and often recant their allegations. 143 A Mental Disease/Illness The national Association of Criminal Defense Lawyers (nACDL), as amici curiae in Kennedy v. Should we punish a person by death if he or she Louisiana , stresses the lack of reliability of children as is committing child rape because of a mental illness? witnesses because of factors such as their vulnerability Several states provide for involuntary civil commitment to suggestion and the withdrawal of their allegations. 144 of sexually violent predators whereby the State confines Although this is a valid point to consider, it should not individuals who are determined to be a threat to society be given much weight because juries also undoubtedly if they are released after imprisonment. 132 If the condi - weigh the credibility of the testifying child victim tion is treatable or curable, should we treat those defen - against the accused. 145 Children may be unable to dis - dants like the mentally incompetent and stay the tinguish between imagination and reality, 146 and this execution until they regain competency? weakness leaves these young witnesses vulnerable to at - tacks on their credibility. As much as juries would like Prior Victimization to believe children, they tend not to lend credence to children over adults, 147 despite the fact that the alleged Many sexual assault offenders were sexual as - sex offender has the most to gain by falsifying his or her sault victims prior to offending. 133 Offenders who have testimony. In Kennedy , Justice Alito addressed the reli - a history of being sexually abused as a child have a ability concerns regarding child witnesses and suggests lower degree of culpability as they do not always realize a corroboration requirement supported by precedent. 148 the impropriety of sexual misconduct. 134 Being a past victim of sexual abuse, though mitigating, would not Innocence Review Commission constitute absolute protection from prosecution. The victim-turned-offender is still responsible for his or her As with any person charged with a crime, there Summer 2009 65 4 is always a possibility that the person is innocent. 149 So - Melissa Meister, Murdering Innocence: The Constitutionality of Capital Child Rape Statutes , 45 A RIZ . L. R eV . 197 (2003) (quot - ciety relies on juries to find guilt correctly in capital ing MARCIA J. W ALKeR & S TAnLeY L. B RODSKY , S eXuAL AS- 150 cases so as not to execute an innocent person. In order SAuLT : T he VICTIM AnD The RAPIST 135 (1976)). to decrease the likelihood of executing an innocent per - 5 See Kennedy v. Louisiana, 128 S. Ct. 2641, 2646 (2008) (“Peti - son, states may adopt an innocence review commission tioner’s crime was one that cannot be recounted in these pages in similar to north Carolina’s review commission. 151 how - a way sufficient to capture in full the hurt and horror inflicted on his victim or to convey the revulsion society . . . sought to ex - ever, the existence of an innocence review commission press.”). may cause jurors to use a standard lower than beyond a 6 Bridgette M. Palmer, note, Death as a Proportionate Penalty reasonable doubt because they believe the commission for the Rape of a Child: Considering One State’s Current Law , 15 will catch their mistakes. 152 GA. S T. u. L. R eV . 843, 844 (1999) (citing DOuGLAS W. P RYOR , unSPeAKABLe ACTS : W hY Men SeXuALLY ABuSe ChILDRen ix (1996)); see also Childhelp.org, national Child Abuse Statistics, Conclusion http://www.childhelp.org/resources/learning-center/statistics (last visited nov. 5, 2008) (compiling data from the national Institute The death penalty has the potential to be propor - on Drug Abuse 2000 Report and a Child Abuse & neglect Study tionate for child rape in the manner for which Louisiana conducted by Arthur Becker-Weidman PhD and finding that provides. If a state chooses to rebel against the Kennedy “children who have been sexually abused are 2.5 times more likely to abuse alcohol and 3.8 times more likely to become ad - ruling and pass a capital child rape statute, then the dicted to drugs”). statute must be narrowed such that only those who truly deserve it will receive the death penalty. 153 See Coker , 433 u.S. 584; see also u.S. COnST . amend. VIII. The Court’s decision in Kennedy begs the ques - 8 See discussion infra Part II (discussing the history of the tion: if the death penalty is not acceptable for any type Supreme Court’s treatment of capital punishment for rape). of rape—which is a crime against a person—then is 9 Kennedy , 128 S. Ct. at 2650-51 (2008) (holding that “a death there any justification for sentencing someone to death sentence for one who raped but did not kill a child, and who did for a crime against the State? Because child rape is not intend to assist another in killing the child, is unconstitutional often viewed as second to murder as the most heinous under the eighth and Fourteenth Amendments”). 10 See LA. R eV . S TAT . A nn . tit. 14 § 42(D) (West 2007), invali - 154 crime, The Kennedy decision could be used by de - dated by Kennedy v. Louisiana, 128 S. Ct. 2641 (2008). fense counsels to argue that their clients should not be 11 Coker , 433 u.S. at 593. executed for a non-homicide crime. unless states start 12 Id. (remarking that sixteen states and the federal government passing legislation capitalizing non-homicide crimes still authorized capital punishment for the rape of adult women). 13 and sentencing to death defendants who did not kill any - 408 u.S. 238 (1972). 14 Coker , 433 u.S. at 594. one, such statutes will suffer the same fate as the one 15 428 u.S. 153, 169 (1976) (holding that the punishment of death that originally sentenced Patrick Kennedy to the death for the crime of murder does not “invariably violate the Constitu - penalty. The Supreme Court would then be forced to tion”); see also Corinna Barrett Lain, Deciding Death , 57 DuKe announce clearly that only murderers will be executed L.J. 1, 8-9 (2007) (“Gregg is the 1976 landmark that reinstated and create another landmark case in death penalty ju - the death penalty a mere four years later, approving newly drafted ‘guided discretion’ statutes and inaugurating what has come to be risprudence. known as the modern death penalty era.”) (citing Gregg , 428 u.S. at 195). 16 Coker , 433 u.S. at 594 (finding Louisiana and north Carolina’s 1 The author would like to thank her parents, John and Jane statutes made the death penalty mandatory in rape cases and were huang, who have always and continue to make sacrifices for therefore subsequently invalidated by Roberts v. Louisiana, 428 their children. Additionally, the author thanks Associate Dean u.S. 325 (1976) and Woodson v. north Carolina, 428 u.S. 280 Leonard Birdsong for encouraging her to publish this article and (1976)). Aggravated rape was punishable by death in Louisiana for providing guidance to the author during her time in law until 1976 when it was determined by the united States Supreme school. Lastly, the author wishes to thank the staff of the Crimi - Court to “constitute[] cruel and unusual punishment in violation nal Law Brief for all of the hours they invested into preparing the of the eighth and Fourteenth Amendments.” Selman v. article for publication. Louisiana, 428 u.S. 906 (1976), remanded to 340 So. 2d 260 (La. 2 FRAnK G. C ARRInGTOn , n eITheR CRueL nOR unuSuAL : T he 1976) (“[T]he appropriate sentence to be imposed upon a valid CASe FOR CAPITAL PunIShMenT 11 ( Arlington house 1978) conviction for aggravated rape is the most severe constitutional (quoting Robert L. Shevin, Attorney General of the State of penalty established by the legislature for a lesser included offense Florida). at the time the crime was committed . . . [which is] twenty years 3 Id . (quoting Coker v. Georgia, 433 u.S. 584, 607-08 (1977) at hard labor.”). (Burger, C.J., dissenting)). 17 GA. C RIM . C ODe § 26-2001 (1971 rev.).

66 Criminal Law Brief 18 Coker , 433 u.S. at 592 (concluding that a death sentence is a cally consider “public attitudes concerning a particular sentence “grossly disproportionate” punishment for the crime of rape). history and precedent, legislative attitudes, and the response of 19 David W. Schaaf, note, What If The Victim Is A Child? Exam - juries reflected in their sentencing decisions.”); see also discus - ining The Constitutionality Of Louisiana’s Challenge To Coker v. sion infra Part III.A. Georgia, 2000 u. I LL . L. R eV . 347, 354-55 (noting that Ten - 35 Mark Sherman, Court Bans Death Penalty for Child Rape , AS- nessee and Florida each struck down their respective capital child SOCIATeD PReSS STATe & L OCAL WIRe , June 26, 2008. rape statute after applying the Coker rationale); see also Collins 36 Brian Z. Tamanaha, A Socio-Legal Methodology For The Inter - v. State, 550 S.W.2d 643, 646 (Tenn. 1977) (striking down Ten - nal/External Distinction: Jurisprudential Implications , 75 F ORD - nessee’s capital child rape statute); Buford v. State, 403 So. 2d hAM L. R eV . 1255 , 1256 (2006) (“Justices in some instances 943, 951 (Fla. 1981) (striking down Florida’s capital child rape consciously decide cases on political grounds, regardless of what statute). they say, and all Justices subconsciously see the law through the 20 Pamela J. Lormand, Proportionate Sentencing for Rape of a lens of their ideological beliefs, which shape their legal interpre - Minor: The Death Penalty Dilemma , 73 T uL . L. R eV . 981 , 1014 tations.”). (1999). 37 See Kennedy , 128 S. Ct. at 2650 (observing that, by providing for capital punishment, the law risks running counter to the con - 21 See State v. Wilson, 685 So. 2d 1063 (La. 1996). straints of the Constitution). 22 See LA. R eV . S TAT . A nn . tit. 14 § 42(D) (West 2007) (“Whoever 38 See Coker , 433 u.S. at 598 (“[T]he death penalty . . . is an ex - commits the crime of aggravated rape shall be punished by life cessive penalty for the rapist who, as such, does not take human imprisonment at hard labor without benefit of parole, probation, life.”). or suspension of sentence. (2) however, if the victim was under 39 See, e.g. , enmund v. Florida, 458 u.S. 782 (1982) (holding that the age of thirteen years . . . : (a) And if the district attorney sentencing to death a defendant who aids and abets a felony in seeks a capital verdict, the offender shall be punished by death or which murder is committed by others violates the eighth Amend - life imprisonment at hard labor without benefit of parole, proba - ment); eberheart v. Georgia, 433 u.S. 917 (1977) (concluding tion, or suspension of sentence, in accordance with the determi - that imposing the death penalty for aggravated kidnapping is nation of the jury . . . .”), invalidated by Kennedy v. Louisiana, cruel and unusual); united States v. Jackson, 390 u.S. 570 (1968) 128 S. Ct. 2641 (2008). (finding the Federal Kidnapping Act to be unconstitutional be - 23 685 So. 2d 1063 (consolidating Bethley’s case with Wilson’s). cause of a capital punishment clause). 24 Id. at 1064. 40 Trop v. Dulles, 356 u.S. 86, 101 (1958). 25 Id. at 1065. Bethley also knew that he was hIV positive at the 41 Kennedy , 128 S. Ct. at 2649 (quoting Trop , 356 u.S. at 101). time of the rapes. Id . 42 Id . at 2657-58. The Louisiana Supreme Court, on the other 26 Id. at 1064-65 (“The thrust of both defendants’ arguments is hand, disagreed by considering the number of jurisdictions which that the imposition of the death penalty for a crime not resulting have capital non-homicide crimes and therefore, concluded that in a death is ‘cruel and unusual punishment’ and therefore uncon - there is no national consensus as the use of capital punishment stitutional under the eight [sic] Amendment to the united States for crimes that do not result in the death of the victim. 957 So. Constitution . . . .”); see also u.S. C OnST . amend. VIII. 2d 757, 788 (La. 2007), overruled by Kennedy , 128 S. Ct. 2641. 27 Wilson , 685 So. 2d at 1065. 43 See e.g. , Coker , 433 u.S. at 592 (singling out legislative enact - 28 Id. at 1063, 1073. ments and jury responses as the only relevant factors); Stanford v. 29 See Betheley v. Lousiana, 520 u.S. 1259 (1997) (finding that in Kentucky, 492 u.S. 361, 379 (1989) (citing plurality opinion as cases involving a criminal defendant “finality is normally defined an important factor), overruled by Roper v. Simmons, 543 u.S. by the imposition of the sentence” (quoting Flynt v. Ohio, 451 551 (2005). u.S. 619, 620 (1981)). For more on the Bethley case see gener - 44 See Colin Garrett, Death Watch , ChAMPIOn , June 2006, at 46 ally Rhonda Bell, Rape Suspect Ot [sic] Ready For Trial Men - (finding Massachusetts, California, Pennsylvania, Virginia and tally Retarded Man Faces Death If Convicted Of Rape Of Alabama have all considered bills). 6-Year-Old , neW ORLeAnS TIMeS -P ICAYune , Dec. 16, 1999, at 45 See TeX . P en . C ODe § 12.42 (2007 Supp.); FLA . S TAT . A nn .§ B1. As of 1999, Wilson was determined mentally retarded and in - 794.011(2)(a) (West 2000); 10 O KL . S T. A nn . § 7115(I) (2006 competent to stand trial. Id . Bethley pled guilty and received a Supp); S.C. C ODe Ann . § 16-3-655(C)(I) (2006 Supp). life sentence for a single count of aggravated rape to avoid prose - cutors seeking the death penalty. Id . Prosecutors predicted Beth - 46 Kennedy , 128 S. Ct. at 2656 (“It is not our practice, nor is it ley would not live through the automatic appeals process if he sound, to find contemporary norms based upon state legislation was given the death sentence because he was hIV positive. Id. that has been proposed but not yet enacted.”). 30 Kennedy , 128 S. Ct. at 2645-46 (describing the victim’s injuries 47 See Roper , 543 u.S. at 578 (noting that international opinion is as extremely severe). largely opposed to the use of the death penalty for juvenile defen - 31 Id . at 2646. dants). however, Roper also makes it clear that international 32 State v. Kennedy, 957 So. 2d 757, 761 (La. 2007). opinion is not determinative. Id. 33 See Paula Berg, Toward A First Amendment Theory Of Doctor- 48 ROGeR hOOD , T he DeATh PenALTY : A W ORLD -WIDe PeRSPeC - Patient Discourse And The Right To Receive Unbiased Medical TIVe 77 (3d ed. 2002). Advice , 74 B.u. L. R eV . 201 (1994) (characterizing the Burger 49 Joanna h. D’Avella, note, Death Row for Child Rape? Cruel Court, which decided Coker , as quite “liberal”). and Unusual Punishment Under the Roper-Atkins “Evolving 34 Coker , 433 u.S. at 592 (noting that the Court should specifi - Standards of Decency” Framework , 92 C ORneLL L. R eV . 129 , 154 (2006) (citing hOOD , supra note 48, at 84-85).

Summer 2009 67 50 Kennedy , 128 S. Ct. 2641 (failing to discuss international stan - DICK . L. R eV . 621 , 648 998) (“Because the death penalty is the dards); see also Landon Webber, Victims Ignored and Justice De - ultimate sanction our criminal justice system provides, it should nied, Because of Supreme Court’s ‘Evolving Standards,’ WRITe be reserved for those whose crime involves the unjustified taking IDeA , June 27, 2008, http://www.writeidea.org/2008/06/victims- of a human life, not child rape.”). The Court chose not to address ignored-and-justice-denied.html (“In Wednesday’s decision, the death penalty for crimes against the State such as treason or Kennedy v. Louisiana , Justice Kennedy at least decided to stick terrorism. See Kennedy , 128 S. Ct. at 2659. with determining national consensus based on the laws of u.S. 67 See id. at 2654-56. states.”). 68 See id . at 2668 (Alito, J., dissenting) (mentioning reasons such as respecting the Coker decision and fear of wasting state re - 51 Col. Dwight Sullivan, The Supremes Dis the Military Justice sources if their statute is found unconstitutional). In the Coker System , CAAF LOG , June 28, 2008, dissent, Chief Justice Burger suggested that other states may be http://caaflog.blogspot.com/2008/06/supremes-dis-military-jus - inclined to adopt the death penalty if they see a strong decrease in tice-system.html. Georgia’s incidence of rape. Coker , 433 u.S. at 618 (Burger, 52 10 u.S.C. §§ 856, 920; Manual for Courts-Martial, united C.J., dissenting). States, Part IV, ¶ 45.f(1) (2008). 69 Kennedy , 128 S. Ct. at 2655 (“In the absence of evidence from 53 Section 552(b) of the national Defense Authorization Act for those States where legislation has been proposed but not enacted Fiscal Year 2006, 119 Stat. 3136, 3264 (2006). we refuse to speculate about the motivations and concerns of par - ticular state legislators.”). 54 See Kennedy v. Louisiana, 128 S. Ct. 2641 (2008). 70 See id . at 2656. 55 Warren Richey, Despite Gaffe, Supreme Court Won’t Revisit 71 Id . at 2653. Landmark Child-Rape Ruling , ChRISTIAn SCIenCe MOnITOR , Oct. 72 Id . at 2656. 2, 2008, at 25. 73 Id . 56 See Kennedy , 128 S. Ct. 1, at *2 (2008) (statement denying pe - 74 Gregg , 428 u.S. at 183. One public poll revealed that sixty- tition for rehearing) (“In any event, authorization of the death five percent of those surveyed were in favor of executing child penalty in the military sphere does not indicate that the penalty is molesters. Corey Rayburn, Better Dead Than Raped?: The Pa - constitutional in the civilian context.”). triarchal Rhetoric Driving Capital Rape Statutes , 78 S T. J Ohn ’S 57 Id. at *3 (Scalia, J., dissenting). L. R eV . 1119 , 1138 (2004) (citing John Q. Barrett, Death for 58 InDA ARTeR LLen ReITZBeRG nDeRSTAnDInG API L e. C & e K , u C - Child Rapists May Not Save Children , nAT ’L L.J. , Aug. 18, 1997, TAL PunIShMenT LAW 79 (2004). at A21). 59 Matthew Silversten, Comment, Sentencing Coker v. Georgia to 75 Mark Sherman, US Supreme Court Reviewing Death Penalty Death: Capital Child Rape Statutes Provide the Supreme Court For Child Rapists , ASSOCIATeD PReSS WORLDSTReAM , Apr. 16, an Opportunity to Return Meaning to the Eighth Amendment , 37 2008. GOnZ . L. R eV . 121 , 162 n.339 (2002). 60 See infra Part III.A.1.b. 76 Darrel K. harris was convicted of “brutally murdering the three 61 Petition for Writ of Certiorari, Kennedy v. Louisiana, 128 S. Ct. people in a Brooklyn social club in the first capital trial since the 2641 (2008) (no. 07-34), 2007 WL 2688267, at *11 n.2 (noting death penalty returned to new York.” ROBeRT JAY LIFTOn & that James Coburn was executed for robbery (citing eXeCuTIOnS GReG MITCheLL , W hO OWnS DeATh ? C APITAL PunIShMenT , The In The u.S. 1608-2002: T he ePSY FILe eXeCuTIOnS BY DATe 381 AMeRICAn COnSCIenCe , AnD The enD OF The DeATh PenALTY 143 (2007))). In 2003, Brin Regan, a former u.S. Air Force sergeant (2000). Most of the panel was disgusted by these murders, but was convicted of two counts of attempted espionage, but the jury two jurors “held out for a life sentence, believing the man could did not find him eligible for the death penalty under the Federal be spiritually redeemed in prison.” Id . at 144. Death Penalty Act. CARTeR & KReITZBeRG, supra note 58, 77 See Gregg , 428 u.S. at 182 (“The relative infrequency of jury at 90-91. verdicts imposing the death sentence does not indicate rejection 62 Patrick Kennedy and Richard Davis also happen to be the only of capital punishment per se.”). individuals on death row in the united States for a non-homicide 78 See id . (“Rather, the reluctance of juries in many cases to im - crime. Kennedy , 128 S. Ct. at 2657. pose the sentence may well reflect the humane feeling that this 63 Divided Court Says Rape Convict Can’t Receive Life Without most irrevocable of sanctions should be reserved for a small num - Parole , ASSOCIATeD PReSS STATe & L OCAL WIRe , Feb. 25, 2008. ber of extreme cases.”). 79 LIFTOn & M ITCheLL , supra note 76, at 139 (referring to mur - 64 Id. The Georgia Supreme Court refused to accept the State’s ar - derers). gument and upheld the Court of Appeals decision that the trial 80 Coker , 433 u.S. at 592 (citing Gregg , 428 u.S. 153 (1976)). judge did not have the authority to sentence the defendant to life 81 Furman , 408 u.S. at 279-80 (Brennan, J., concurring). without parole without first seeking the death penalty. Id . 82 See Brief Amici Curiae of the ACLu et al., Coker v. Georgia, 65 See Coker , 433 u.S. at 598 (“We have the abiding conviction 433 u.S. 584 (1977) (no. 75-5444), 1976 WL 181482, at *28 n.* that the death penalty, which ‘is unique in its severity and irrevo - (noting that “the threatened penalty may come to dominate the cability,’ is an excessive penalty for the rapist who, as such, does deliberation of a jury” (quoting hARRY KALVen , J R. & h AnS not take human life.” (quoting Gregg , 428 u.S. at 187)). ZeISeL , T he AMeRICAn JuRY 311 n.8 (1966))). 66 Kennedy , 128 S. Ct. at 2650; see also Coker , 433 u.S. at 599; 83 Coker , 433 u.S. at 593 n.4. emily Marie Moeller, Comment, Devolving Standards of De - 84 Id . cency: Using the Death Penalty to Punish Child Rapists , 102 85 See Kennedy , 128 S. Ct. at 2655 (“Respondent cites no reliable

68 Criminal Law Brief data to indicate that state legislatures have read Coker to bar capi - (2002) (presenting recent case law discussing evolving standards tal punishment for child rape and, for this reason, have been de - of decency in response to national concerns about the use of capi - terred from passing applicable death penalty legislation.”). tal punishment). 86 Ken Vernon, Reflecting Society , GOLD COAST BuLL ., nov. 21, 99 Coker , 433 u.S. at 598 (“Life is over for the victim of the mur - 2005, at 37 (quoting poet hyman Barshay) derer; for the rape victim, life may not be nearly so happy as it The death penalty is a warning, just like a light - was, but it is not over and normally is not beyond repair.”). house throwing its beams out to sea. We hear 100 Id. about shipwrecks, but we do not hear about the ships the lighthouse guides safely on their way. 101 Glazer, supra note 89, at 86 (explaining that rape victims suf - We do not have proof of the number of ships it fer behavioral problems long after their physical injuries have saves, but we do not tear the lighthouse down. healed); see also Brief of nASW, supra note 93, at *11 (showing Id. that “[sexual] abuse increases the likelihood that the victim will 87 Coker , 433 u.S. at 617 (Burger, C.J., dissenting). subsequently engage in crime, become pregnant while a minor, 88 hOOD , supra note 48, at 205 (quoting Isaac ehrlich, Capital drop out of school, abuse alcohol or drugs, and suffer from psy - Punishment and Deterrence: Some Further Thoughts and Addi - chological disorders, such as depression, anxiety disorders, and tional Evidence , 85 J. P OL . e COn . 714 , 742-43 (1977)). posttraumatic stress disorder.” (citing BARBARA TATeM KeLLY , 89 Yale Glazer, Child Rapists Beware! The Death Penalty and u.S. D ePARTMenT OF JuSTICe , I n The WAKe OF ChILDhOOD MAL - Louisiana’s Amended Aggravated Rape Statute , 25 A M. J. C RIM . TReATMenT 2 (Aug. 1997))). L. 79 , 105 (1997) (citing Original Brief of Appellee Patrick De - 102 Kennedy , 128 S. Ct. at 2658. wayne Bethley at 20, State v. Bethley, 685 So. 2d 1063 (La. 103 1996) (no. 96-F0-460)); s ee also Brief of the national Associa - Id. See also id . at 2649 (pointing out that “[t]he standard of tion of Criminal Defense Lawyers (nACDL) as Amici Curiae in extreme cruelty is not merely descriptive, but necessarily embod - Support of Petitioner, Patrick Kennedy v. Louisiana, 2007 WL ies a moral judgment”) (quoting Furman , 408 u.S. at 382 4104371 at *3 (nov. 14, 2007) (no. 07-343) (“Child sexual abuse (Burger, C.J., dissenting)). 104 convictions are often ‘based primarily, if not solely, on the word Kennedy , 128 S. Ct. at 2673 (Alito, J., dissenting). of the victims involved.’” (quoting Dana A. Anderson, Assessing 105 Id . the Reliability of Child Testimony in Sexual Abuse Cases , 69 S. 106 The Louisiana Supreme Court noted that the united States CAL . L. R eV . 2117 , 2118 (1996))). Supreme Court in Lowenfield v. Phelps, 484 u.S. 231 (1988) 90 State v. Kennedy, 957 So. 2d at 789 n.38. held “a death sentence does not violate the eighth Amendment 91 Glazer, supra note 89, at 106. merely because the single statutory ‘aggravating circumstance’ 92 Id . at 107 (“Those who oppose the imposition of the death found by the jury duplicates an element of the underlying of - penalty for the rape of a child under twelve argue that if the de - fense.” Kennedy , 957 So. 2d at 791. fendant did not intend to kill the victim, the defendant should not 107 Justice Powell does not believe that it is so simple to have a be punished as if such an intent existed.”). bright-line-rule. Coker , 433 u.S. at 603 (Powell, J., concurring 93 Brief of the national Association of Social Workers (nASW) et in part, dissenting in part). al. as Amici Curiae in Support of Petitioner, Kennedy v. 108 356 F.2d 626, 627 (4th Cir. 1966). Louisiana, 129 S. Ct. 1 (2008) (no. 07-343), 2007 WL 3444963 109 Coker , 433 u.S. at 603 (Powell, J., concurring in part, dissent - (nov. 14, 2007). ing in part) (citing Snider , 356 F.2d at 627 (“There is extreme 94 Id. at *3 (showing an estimated number of 83,000 to 217,000 variation in the degree of culpability of rapists. If one were sen - children a year are sexual abuse victims); id. at *6 (citing u.S. tenced to death upon conviction of rape of an adult under circum - Department of health and human Services, Child Maltreatment stances lacking great aggravation, the Supreme Court might well 2005 41 tbl. 3-6 (2007)); Andrea J. Sedlak & Diane D. Broad - find it an appropriate case to consider the constitutional question hurst, Third National Incidence Study of Child Abuse and Neglect tendered to us.”)). 2-1 to -3, 3-3 tbl.3-1 (1996). 110 Id . 95 CARTeR & KReITZBeRG, supra note 58 , at 8 (comparing 111 Id. (“Some victims are so grievously injured physically or psy - the use and non-use of the death penalty among states). chologically that life is beyond repair.”). 96 Furman , 408 u.S. at 356 (Marshall, J. concurring) (“Life im - 112 Gregg , 428 u.S. at 188 (referring to the holding of Furman ). prisonment remains a severe sanction which can be used as lever - 113 Lormand, supra note 20, at 987 (citing Gregg , 428 u.S. at age for bargaining for pleas or confessions in exchange either for 188); see also Woodson , 428 u.S. 280 (requiring statutes to have charges of lesser offenses or recommendations of leniency.”). some mitigating circumstances in order to avoid being deter - 97 Brief of the nACDL, supra note 89, at *10 (citing Joseph L. mined an arbitrary and capricious punishment). hoffmann et al., Plea Bargaining in the Shadow of Death , 69 114 Lormand, supra note 20, at 988 (citing Zant v. Stephens, 462 FORDhAM L. R eV . 2313 , 2359 (2001)); Petition for a Writ of Cer - u.S. 862, 877 (1983)). tiorari, supra note 61, at *22 (“[D]efendants charged with child 115 Id. at 987 (citing Lowenfield , 484 u.S. at 246). Louisiana has rape are more likely to plead guilty than before [Louisiana’s capi - decided to narrowly define its capital offenses, thereby allowing tal rape law] was enacted.” (citing Angela D. West, Death as De - the jury to narrow its findings at the guilt phase. See Brief in Op - terrent or Prosecutorial Tool? Examining the Impact of position to Petition for Certiorari, Kennedy v.c Luroruinisgi)a n(“a[, T2]9h eS .dCist.- Louisiana’s Child Rape Law , 13 C RIM . J uST . P OL ’Y ReV . 156 1, (2008) (no. 07-343), 2007 WL 4104370, at *23. (2002))). 116 Furman , 408 u.S. at 255 (Douglas, J., con 98 See Roper , 543 u.S. at 568 (quoting Atk ins, 536 u.S. 304, 319 Summer 2009 69 cretion of judges and juries in imposing the death penalty enables 132 See, e.g., FLA . STAT . A nn . §§ 394.910-.930 (West 2008). the penalty to be selectively applied, feeding prejudices against 133 nATIOnAL CenTeR FOR JuVenILe JuSTICe , S eXuAL ASSAuLT OF the accused if he is poor and despised, and lacking political clout, YOunG ChILDRen AS RePORTeD TO LAW enFORCeMenT : V ICTIM , or if he is a member of a suspect or unpopular minority, and sav - InCIDenT , AnD OFFenDeR , C hARACTeRISTICS (2000), ing those who by social position may be in a more protected posi - http://www.ojp.usdoj.gov/bjs/pub/pdf/saycrle.pdf (citing Vander - tion.”). bilt, 1992) (last visited nov. 5, 2008). 117 Louisiana requires that a jury find “beyond a reasonable doubt 134 See Suzanne Meiners-Levy, Challenging the Prosecution of that at least one statutory aggravating circumstance exists” before Young “Sex Offenders”: How Developmental Psychology and the sentencing a defendant to death. LA. C ODe CRIM . P ROC . A nn . art. Lessons of Roper Should Inform Daily Practice , 79 T eMP . L. R eV . 905.3, 905.4 (West 1997). 499 , 507 (2006) (“[A]s prior victims of abuse, they are less likely 118 Kennedy , 128 S. Ct. at 2660 (denying the utility of more ag - to realize the inappropriateness or illegality of their sexual behav - gravating circumstances such as to authorize capitalizing child ior.”) (citing Larry K. Brown et al., Impact of Sexual Abuse on rape because it would still result in arbitrary imposition of the the HIV-Risk-Related Behavior of Adolescents in Intensive Psy - death penalty). chiatric Treatment , 157 A M. J. P SYChIATRY 1413 , 1414-15 119 See Linda Greenhouse, Justices Bar Death Penalty for the (2000))). 135 Rape of a Child , n.Y. T IMeS , A1, June 21, 2008 (noting that Pres - national Center for Juvenile Justice , Sexual Assault of Young ident Obama disagrees with the Court’s unwillingness to make an Children as Reported to Law Enforcement: Victim, Incident, and exception based on the brutality of the attack). Offender, Characteristics, 2000 , 120 See Robert Barnes, High Court Rejects Death for Child Rape , http://www.ojp.usdoj.gov/bjs/pub/pdf/saycrle.pdf (last visited WASh . P OST , A1, June 26, 2008. nov. 5, 2008). 121 Bill Walsh, Justices Consider Death Penalty for Child Rapists , 136 William G. Austin, Assessing Credibility in Allegations of neWhOuSe neWS SeRVICe , Apr. 16, 2008. Marital Violence in the High-Conflict Child Custody Case , 38 122 See Coker , 433 u.S. at 601 (Powell, J., concurring in part, dis - FAM . & C OnCILIATIOn COuRTS ReV . 462 , 468 (2000) (“Sometimes senting in part). the children will report on incidents, but they may be reluctant to 123 Texas Representative Lamar Smith proposed an amendment to report because of a loyalty conflict in their attachment to the par - the u.S. Constitution to overrule the Kennedy decision. Rep. ents or being aligned with a parent who is a perpetrator of Smith Introduces Constitutional Amendment to Protect Child Vic - abuse.”); Thomas D. Lyon, The New Wave in Children’s Sug - tims of Forcible Rape , uS F eD neWS , June 26, 2008. The resolu - gestibility Research: A Critique , 84 C ORneLL L. R eV . 1004 , 1048 tion does not mandate the death penalty, but it certainly makes (1999) (remarking that some children do report abuse out of fear the option available for the justice system. Id. of what may to them, their families or their perpetrators). In 124 S.C. C ODe Ann . § 16-3-655(C)(I) (2006 Supp); Garrett, supra some cases, the child is even more unlikely to report abuse be - note 44. cause the abuser is a family member otherwise close to the child, 125 For an in-depth discussion of South Carolina’s capital child and additionally, children sometimes are afraid of being blamed rape statute, see Carli J. Wilcox, Is South Carolina’s New Capital for what has happened to them. Id. ; see also Brief of the nASW, Child Rape Statute Unconstitutional as Cruel and Unusual Under supra note 93, at *8 (finding that there is a high rate of reluctance the Eighth Amendment? , 1 C hARLeSTOn L. R eV . 315 (2007). of children to report sexual abuse by family members) (citing 126 See People v. Dekens, 695 n.e.2d 474, 475 (Ill. 1998) (“under Tina B. Goodman-Brown et al. , Why Children Tell: A Model of [the proximate cause] theory, liability attaches ‘for any death Children’s Disclosure of Sexual Abuse , 27 ChILD ABuSe & proximately resulting from the unlawful activity-notwithstanding neGLeCT 525 , 537 (2003)). the fact that the killing was by one resisting the crime.’” (quoting 137 See Brief of nACDL, supra note 89, at *6 (citing Lindsay People v. Lowery, 687 n.e.2d 973, 975-76 (1997))); see also Malloy et al., Filial Dependency & Recantation of Child Sexual People v. Boand, 838 n.e.2d 367 (Ill. App. Ct. 2005) (applying Abuse Allegations , 46 J. A M. A CAD . C hILD & A DOLeSC . P SYChIA - the proximate cause theory of liability to a rape case). TRY 162 , 167 (Feb. 2007)); see also infra Part IV.e (expressing 127 See LA. C ODe CRIM . P ROC . A nn . art. 905. concerns about the use of child testimony). 128 Angelyn L. Miller, Comment, Constitutional Law: Can a 138 Glazer, supra note 89, at 112 (quoting Brief in Support of Ap - Convicted Rapist Be Sentenced to Death for Raping a Child pellees of Amicus Curiae Louisiana Foundation Against Sexual Under Twelve Years of Age? , 37 W AShBuRn L.J. 187 , 202 (1997)) Assault, Inc., et al. at 4, State v. Bethley, 685 So. 2d 1063 (La. (suggesting that the death penalty should be offered only when 1996) (no. 96-F0-460)). the rapist not only has AIDS, but is also aware of having AIDS). 139 Bill Rankin et al., Death Still Arbitrary , ATLAnTA JOuRnAL - 129 See Coker , 433 u.S. at 665-66 (Burger, C.J., dissenting) COnSTITuTIOn , (“[O]thers in his position will henceforth feel no compunction http://www.ajc.com/metro/content/metro/stories/deathpenalty/day whatsoever about committing further rapes as frequently as he one/dpdayone3.html (last visited nov. 5, 2008); see also Margery may be able to escape from confinement and indeed even within Malkin Koosed, Averting Mistaken Executions By Adopting The the walls of the prison itself.”). Model Penal Code’s Exclusion Of Death In The Presence Of Lin - 130 On September 2, 1974, Coker escaped from the Ware Correc - gering Doubt , 21 n. I LL . u. L. R eV . 41 , 67 (2001) (“Pro-death ju - tional Institution after which he entered the house of Allen and rors may fear that a subsequent jury may not convict, and pro-life elnita Carver and raped Mrs. Carver. Id . at 587. jurors may fear that a subsequent jury will acquit on all charges 131 Id. at 606-07 (Burger, C.J., dissenting). or sentence the possibly innocent defendant to death.” (citing William J. Bowers et al., Foreclosed Impartiality in Capital Sen - tencing: Jurors’ Predispositions, Guilt-Trial Experience, and Pre - 70 Criminal Law Brief mature Decision Making , 83 C ORneLL L. R eV . 1476 , 1527 (1998))). 140 Brief of the nACDL, supra note 89, at *2 (citing Johnson v. Mississippi, 486 u.S. 578, 584 (1988)). 141 Id . at *4. 142 Id . 143 Id. at *6 (stating that a number of studies “have found more than 20% of children recant their allegations of sexual abuse”) (citing Malloy et al., supra note 137, at 165). 144 Id. at *2. A number of studies have shown that more than twenty percent of children recant their allegations of sexual abuse. Id . (citing Malloy et al., supra note 137, at 165; Kamala London et al., Children Tell? , 11 P SYCh ., P uB . P OL ’Y. & L. 194 , 216 (2005)). 145 Brief of the nACDL, supra note 89, at *3 (citing ex parte Thompson, 153 S. W. 3d 416, 422 (Tex. Crim. App. 2005) (Cochran, J., concurring)). 146 Daniel e. Monnat & Paige A. nicholas, The Kid Gloves Are Off: Child Hearsay After Crawford V. Washington, 30 FeB ChAMPIOn 18, 20 (2006) (citing Maryland v. Craig, 497 u.S. 836, 868 (1990) (Scalia, J., dissenting)). 147 David McCord, Expert Psychological Testimony About Child Complainants in Sexual Abuse Prosecutions: A Foray into the Admissibility of Novel Psychological Evidence , 77 J. C RIM . L. & CRIMInOLOGY 1, 47 (1986) (“With respect to the moral ability to tell the truth, jurors may believe that children are more likely to lie than are adults.”). 148 Kennedy v. Louisiana, 128 S. Ct. 2641, 2675 (2008) (Alito, J., dissenting). 149 Professor hugo Adam Bedau conceded that some innocent persons have undoubtedly been executed, “even if it cannot be proved.” hOOD , supra note 48, at 104 (citing MIChAeL L. RADeLeT , h uGO ADAM BeDAu & C OnSTAnCe e. P uTnAM , I n SPITe OF InnOCenCe (1992)). 150 Brief of the nACDL, supra note 89, at *3 (citing herrera v. Collins, 506 u.S. 390, 407 n.5 (1993)). 151 See generally erik Lillquist, Improving Accuracy in Criminal Cases , 41 u. R ICh . L. R eV . 897 , 906-11 (2007); Jerome M. Ma - iatico, All Eyes on Us: A Comparative Critique of the North Car - olina Innocence Inquiry Commission , 56 D uKe L.J. 1345 (2007) (demonstrating the use of safeguards to protect against wrongful execution). 152 Lillquist, supra note 151, at 908. There is also the possibility of exonerating a guilty person. Id . 153 See David W. Schaaf, note: What if the Victim is a Child?: Ex - amining the Constitutionality of Louisiana’s Challenge to Coker v. Georgia, 2000 u. I LL . L. R eV . 347 , 375 (2000) (“[I]f Louisiana’s death-penalty law for child rape is struck down, the future proliferation of the death penalty could be severely limited. For the current nonhomicide, nonrape death-penalty laws to sur - vive, states will have to prove that the crime they are punishing with death is worse than rape.”). 154 State v. Kennedy , 957 So. 2d at 785 (asserting that child rape is “the most heinous of all non-homicide crimes,” and remarking that the united States Supreme Court seems to agree). * Shirley huang is an associate at the Law Office of Matthew L. Cersine, P.L.. J.D., 2008, Barry university Dwayne O. Andreas School of Law, Orlando, Florida; B.A. Psychology and Interna - tional Relations, 2004, university of California, Davis.

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